I’ve been reflecting on the Jessup regional round here on Saturday morning. The bench I watched, led by Andrew Bruce SC approached the problem from a very pragmatic and practical approach.
As I mentioned in my last post, this years problem shows some very potent defects when investigated from that perspective. I thought it would be worthwhile to post the best question I heard that day on here.
In Declaration 2 the Applicants ask that the Respondents be forced to disclose the classified evidence that they relied on before the UN Security Council and in other correspondence in the Compromis. The Respondents seek to resist that declaration.
The bench rightly pointed out that Declaration 2 is parasitic on the issue in Declaration 1. The classified material is evidence that would help prove the case in Declaration 1.
The Bench seized on this to weave a clever question for the Applicant.
Why does the Applicant want to win Declaration 2 at all?
When that question was asked, the two sets of Applicants I saw were stunned. They stood there for a few seconds, their brain desperately working to find a credible answer. Both sets admitted that they didn’t have one at the end.
When you think about it, it’s clear why this is an impossible question for the Applicant to answer well.
In Declaration 1, the issue requires the Respondent to prove their case to win the declaration. This is because the intrinsic nature of a use of force issue which puts the burden of justifying intervention on the state that does the intervening.
If the Applicant looses Declaration 2, there’s almost no chance that the other evidence justifies the intervention. By loosing Declaration 2 it almost definitely wins Declaration 1.
If they insist on the evidence being produced, then they take the risk of what that evidence will say. It may be the case that the evidence is conclusive and reliable. In fact given the Secretary General’s report – it almost certainly is both conclusive and reliable. At the very least it is likely to be both. By winning Declaration 2, the Applicants increase their chance of loosing Declaration 1.
They don’t want to win Declaration 2. Too few teams have realised that’ truth.